Judicial review in Hong Kong

Judicial review in Hong Kong is conducted according to the Constitutional and Administrative Law List (Practice Direction 26.1).^[1] It comprises two different aspects: firstly, judicial review of domestic legislation as to their compatibility with the Basic Law ("constitutional review"); secondly, judicial review of administrative decisions under administrative law ("administrative review").

Constitutional review

Under the Basic Law, the court of Hong Kong is also delegated with the power to interpret the Basic Law. Thus, it is recognised by the Hong Kong courts that they have jurisdiction to check whether the executive or legislature are working within the boundaries of the Basic Law. Similar to the United States, Hong Kong courts have held that they may review as to whether legislation passed by the legislature is in compliance with the Basic Law. This is different from the situation in the UK where the court may have no such jurisdiction under the traditional doctrine of parliamentary supremacy. The Hong Kong courts observed that reviewing legislation is possible because the legislature in Hong Kong is not, unlike its UK counterpart, supreme.

Article 39 of the Basic Law entrenches the International Covenant on Civil and Political Rights (ICCPR) as a core constitutional document for Hong Kong. No legal restrictions on the rights and freedoms of Hong Kong residents may contravene the ICCPR as applied to Hong Kong. The ICCPR applies to Hong Kong primarily through the Hong Kong Bill of Rights Ordinance (BORO), which was enacted in 1991. In fact, the BORO was the subject of many cases of judicial review before 1997. In particular, R v Sin Yau Ming, a 1992 case involving the presumption of innocence in the BORO, set the stage for future judicial review.

Administrative review

The Basic Law provides that the previous law in force in Hong Kong, including Common Law, will be preserved. Thus, administrative review, as part of the Common Law, is also preserved. The basis of administrative review is commonly said to be Article 35 of the Basic Law, which reads:

Hong Kong residents shall have the right to institute legal proceedings in the courts against the acts of the executive authorities and their personnel.

Hong Kong's administrative law is highly similar to English administrative law, with a few minor differences. "Both systems are nearly the same with a few often neglected, but important differences.

Controversy

On 3 December 2015, Henry Litton, a retired judge who sat on the Court of Final Appeal, caused controversy by his claim that the system of judicial review had been "abused". "Judicial review is not available for challenges to government policy," he said. "That is a fundamental rule in the separation of powers. The court is concerned with law, not policy." Litton also criticized the way judges dealt with judicial review cases. ^[2]

Shortly afterwards, Winnie Tam, chair of the Bar Association, told the media that not every unsuccessful case of judicial review represented an abuse of the system. ^[3]

On 14 December, government spokesman Andrew Fung questioned the neutrality of barristers who disagreed with Litton. He suggested that there may be a conflict of interest, since some barristers profit from judicial review cases. He also complained of the costs incurred by delay caused by judicial review. ^[4]

On the same day, former chief justice Andrew Li wrote in an op-ed that "the pursuit of efficiency must not be at the expense of justice." He believed that Litton's criticism of judges was unjustified.^[5]

On 12 January 2016, Chief Executive Leung Chun-ying told reporters that while judicial reviews are provided for under Hong Kong's legal system and serve to monitor the Government's work, the judicial review system is sometimes abused. ^[6]

Chief Justice Geoffrey Ma also defended the system against attacks on its inconvenience. "Although there may occasionally be inconveniences, judicial review overall serves the public interest and facilitates the well-being of our society," he said in his speech at the Ceremonial Opening of the Legal Year 2016. "This status should properly be recognised." ^[7]

References